Draper v. Jacklyn (1970), S.C.R. 92 (SCC)

Draper is the leading case on the issue of judicial discretion to exclude real evidence in civil matters.  The Supreme Court of Canada allowed photographs of the operative procedures performed on a plaintiff’s face where the issue was quantum of damages but not liability.  The jury was instructed that they may take into account the plaintiff’s pain and discomfort as well as the unattractiveness of the plaintiff’s face during the period of recovery.  Spence J. reasoned that:

 

The occasions are frequent upon which a judge trying a case with the assistance of a jury is called upon to determine whether or not a piece of evidence technically admissible may be prejudicial to the opposite side that any probative values overcome by the possible prejudice and that therefore he should exclude the production of the particular piece of evidence … The matter is always one which is difficult for the trial judge and in itself essentially a decision in which the trial judge must exercise his own carefully considered personal discretion.

 

Draper did not offer a framework in which to weigh the probative value and the prejudicial effect of the tendered evidence.

 

Alexander Rozine is an Associate at D’Angela Fox Vanounou LLP, a plaintiff-side personal injury firm in Toronto.

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